The message Supreme Court Justice Sonia Sotomayor delivered to law students recently is that you can’t always get what you want. Apologies for the earworm. The American Bar Association hosted an event Wednesday in which Sotomayor participated via Zoom. The law students got an earful of Sotomayor’s opinions, including her opinion about a case currently before SCOTUS. She should recuse herself from the case now but will she? Likely not.

Sotomayor told the law students that they will experience a lot of disappointment in the law, “a huge amount.” She went on to boast of being a frequent author of dissenting opinions on the court’s rulings. “Look at me, look at my dissents.” She focused on the new fetal heartbeat law in Texas, S.B.8, as an example of her own frustration with a SCOTUS ruling. The majority of Supreme Court justices didn’t stop the law from going into effect on September 1. Sotomayor vigorously opposed that decision and wrote a dissent saying so. In speaking about the case, which is currently before the court as the new session begins next week, did she cross the line of acceptable behavior?

Earlier this month, Sotomayor penned a scathing opinion when the court’s majority allowed the Texas law to go into effect, calling the action “stunning.”

“You know, I can’t change Texas’ law,” Sotomayor said Wednesday, “but you can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like.”

The justice then caught herself speaking about a contentious case currently before the court.

“I am pointing out to that when I shouldn’t because they tell me I shouldn’t,” she said. “But my point is that there are going to be a lot of things you don’t like” and that the public can change.

Sotomayor did cross the line and she knows it. She caught herself as she went on about the case, proving she realized she went too far. She did what Joe Biden does when he, too, is speaking too much, she said “they” tell her she shouldn’t. Who, exactly, is “they”? Josh Blackman writing at Reason has a good piece about the kerfuffle.

As I read it, Justice Sotomayor urged the people in attendance who oppose S.B. 8 should lobby to repeal S.B. 8. But then she stopped herself, recognizing that she had gone too far. The sentence, as quoted, is hard to follow: “I am pointing out to that when I shouldn’t because they tell me I shouldn’t.” Who is “they”? Was someone in the room waving at her, telling her to stop? Or did a flag go off in her head mid-sentence? Did she suddenly recall some ethics advice she received?

Blackman provides three points to take into consideration when pondering if Sotomayor crossed the line.

First, it is fairly common for Justices to write that laws should be changed in a published opinion. Perhaps the most famous example of this dynamic was Justice Ginsburg’s plea to Congress in Ledbetter v. Goodyear. But these pleas generally come in the opinion itself. Sotomayor did not make such an appeal in her Jackson dissent. She made it the appeal in a public speech.

Second, it has become fairly common for Justices to talk about their opinions–especially their dissents. But Justice Sotomayor did not argue in her Jackson dissent that S.B. 8 should be repealed. She argued the law was unconstitutional. Her “lobby” argument.

Third, it is extremely rare for a Justice to talk about a case that is still pending. On September 1, the Court denied a stay in Whole Woman Health v. Jackson. But that case is now pending before the Court on plenary review. The parties filed a petition for certiorari before judgment. The case is pending. And I know from personal experience that Justice Sotomayor takes this issue seriously.

Blackman goes on to tell his own experience with Sotomayor. He mailed a copy of his book, Unraveled: Obamacare, Religious Liberty and Executive Power, to all the Justices. He says most of the Justices sent thank-you notes but Sotomayor’s assistant mailed the book back to him with her note. She refused his gift because “she is unable to accept any materials that in any way relate to pending litigation that may come before the Supreme Court.” Read his piece, it’s an interesting one.

During Sotomayor’s remarks to the law students, she encouraged them to work to change laws they don’t like, essentially. She was promoting political activism among future lawyers. Democrats use the legal system for advancing their political agendas, and it has been so for a long time. The legislative process is where laws are written and voted on, though. When she wrote her dissent on the Texas fetal heartbeat law going into effect, it was reported that Sotomayor has an eye to the future with her current actions. She is stepping forward as the voice of the progressive wing of the Supreme Court. She wants future lawyers to read her dissents so they will understand her legal brilliance or something.

“She is crafting arguments for future advocates, she is creating these road maps for how to restore rights to disempowered people,” Columbia Law School’s Alexis Hoag said at a recent event sponsored by the liberal American Constitution Society. “I’m looking for lengthy dissents.”

Last April, Sotomayor acknowledged that she was writing for the future at times. “Maybe,” she said, “a later court will understand I was right.”

George Washington University Law Professor David Fontana — who once dubbed Sotomayor the “People’s Justice” — took to Twitter recently to highlight her role after the court’s majority allowed the Texas law to go into effect.

“Sotomayor has chosen a different path,” from Chief Justice John Roberts and others who are more moderate in their dissent, Fontana wrote. “Better to push and develop and alternative perspective by your vote rather than sacrifice the microphone.”

“The Court’s order is stunning,” Sotomayor wrote at the time. “Presented with an application to join a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of the Justices have opted to bury their heads in the sand.”
Sotomayor added: “The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law,” she concluded.

It is Sotomayor’s arrogance that is “stunning”, not the Court’s order. She thinks she’s the smartest person in the room. She is welcome to speak to future lawyers all she wants, as long as she stays in her lane. She can encourage their career pursuits and inspire them to do worthy things but to opine on matters before the court is just wrong. She knows it and must recuse herself from the Texas case when the new term starts next week. Will she? Don’t hold your breath.